This article examines the case of Gaza Marine, a small offshore natural gas reservoir in Gaza that has remained undeveloped since its discovery in 2000. Due to the complicated political status of the Gaza Strip over the past two decades, neither the Palestinian Authority, Hamas, nor Israel could claim full rights to Gaza’s maritime zones or develop the Gaza Marine field. However, the devastating 2023 Israel-Hamas war created four possible scenarios of administration over Gaza, each with its own legal implications for the development rights of the field. These scenarios include Palestinian independence, continued Israeli occupation, international transitional administration (ITA) over Gaza, or partial Israeli annexation of Gaza. This article argues that the development of Gaza Marine is a vital part of Gaza’s postwar reconstruction and is possible under these scenarios, the most understudied of which is the ITA model. This article can thus serve as a roadmap for other postwar coastal territories with contested rights over offshore energy deposits.

This article focuses international legal scholars’ attention on consular relations, consular work, and related international law. It does so for two main reasons. First, as scholars of diplomatic history and international relations have observed, consular work is of growing significance in global affairs. Second, there are largely unrealized possibilities for thinking about international law, and grappling afresh with its dilemmas, through a consular optic. International law conducted through consular offices and officials advances views of the international legal plane, its key actors, and relations among them, that are distinguishable from those advanced by diplomacy and international law as traditionally conceived. This article theorizes this distinctive logic as consular internationalism. Its argument is that consular internationalism is a richer resource for thought and practice in international law than commonly acknowledged. It is especially relevant, this article aims to show, for analyzing historical and contemporary entanglements of imperial and commercial power, grappling with the role of lay people and unofficial communities in shaping international legal order, and, potentially, supporting anti-hierarchical struggles.

Business and Human Rights (BHR) scholarship has long recognized the exercise of corporate power as resembling functional sovereignty, advocating for the extension of the rule of law to private actors, establishing accountability regimes, and providing remedies for victims. With the proliferation of binding BHR instruments, such as human rights due diligence legislation, the BHR project finds itself at a critical juncture, where calls for hard obligations are no longer sufficient. Our article, and the broader Symposium, seek to push the boundaries of the discourse by interrogating the legal foundations of private power. Drawing from Law and Political Economy scholarship, we challenge the prevailing notion of ‘governance gaps’ that often frames BHR debates. Rather, we argue that the legal infrastructure itself enables and facilitates the forms of exploitation and structural inequality embedded in the global political economy, leading to predictable patterns of human rights violations. By uncovering the institutional foundations of private power, we also show how efforts to leverage mechanisms of private governance, including human rights due diligence, risk naturalizing corporate power and limiting institutional imagination. However, a critique only focused on institutional design does not sufficiently account for the hardwiring of social relations of global production and the systemic constraints these impose on projects of legal reform. Acknowledging these limitations, we outline two modes of critique: an ‘internal’ critique, which seeks to reimagine institutional frameworks, and an ‘immanent’ critique, which emphasizes the role of collective action and social movements in transforming the underlying social relations of production.

The commons are defined by non-excludability – the idea that none can exclude another from access or use. Likewise, space lawyers portray their discipline’s origin story as uniquely egalitarian and inclusive, in part because of how it was made. The 1963 Principles Declaration and 1967 Outer Space Treaty were drafted by a committee of 28 states that decided by consensus – the first permanent UN body to do so. They worked in the midst of significant colonial and Cold War tensions to form a body of law which implicated the interests of every state. This article argues that the lawmaking which made space ‘common’ was made possible by excluding the Third World. It uses historical sources from 18 archives to shed new light on the process of making space law from 1957 to 1967. Based on this, it explores various factors, from UN documentation practices to American racial segregation, that cumulatively prevented Third World representatives from meaningful participation in space lawmaking. These factors had broad impacts on the drafting committee’s membership, attendance, decision-making procedure, and final products. By seeking to understand this ‘small history’ of a niche field at a specific historical moment, this article also adds to ongoing work that questions the axioms by which international lawyers interpret treaties today.

This perspective addresses the arguments and concerns raised following the publication of our article, ‘Postwar Development of Offshore Energy Resources’. It aims to demonstrate how the International Court of Justice Advisory Opinion of 19 July 2024, which was released after the writing of our article, strengthens our legal conclusion that the Palestinians maintain exclusive rights to develop the Gaza Marine gas field. This perspective also clarifies our arguments concerning Palestinian statehood, the law of occupation, and the issue of illegal annexation, which was misinterpreted by some readers. Finally, we provide reflections as to the timing and context under which our article was released, considering the ongoing war in Gaza.

‘Business and Human Rights’ (BHR) has congealed as the predominant framework to conceive and address violence in the context of transnational production networks. This article presents an analysis of the assumptions regarding the nature of violence, its underlying economic causes and potential remedies that underpin contemporary BHR regulations. Drawing from literature on primitive accumulation and taking the German ‘Supply Chain Due Diligence Act’ as an example, the text argues that the Act distinguishes legal and illegal forms of doing business in a way that reproduces liberal accounts of capitalism’s relation to violence. In outlawing extreme forms of labour exploitation, environmental harm, illegal evictions and physical repression, the Act disconnects violent dispossession, repression, and over-exploitation from the normal, everyday workings of global capitalism. At the same time, it posits the normal functioning of capitalist accumulation as a non-violent alternative, thus failing to account for the violence of the market and the structural relation between capitalist and other forms of accumulation. Against this backdrop, the challenge for a critical BHR practice consists in using BHR norms to highlight instances of primitive accumulation, while simultaneously envisioning a future of work that does not seek redemption in ‘normal’ capitalist exploitation.

On 16 March 2022, Russia became the first state to be expelled from the Council of Europe (CoE). The reshaping of power dynamics between international law actors is providing a favourable space to international organizations to use membership as a strategic tool. In order to understand under what circumstances the CoE decides to end membership, the article elucidates the substantive and symbolic grounds of Russia’s expulsion. Substantive grounds are defined as non-compliance with the membership criteria of the CoE and its founding principles as regulated in Article 3 of its Statute. Symbolic grounds are what motivates the CoE in its positioning within the international legal order as indicated in the preamble of its Statute. The analysis of the substantive grounds will reveal that the violation of the CoE Statute and the prohibition on the use of force because of the invasion of Ukraine are not enough to explain Russia’s expulsion. This article argues that Russia’s expulsion relies on symbolic grounds that allowed the CoE to preserve its position as the guardian of European imperialism. The clash of the two actors’ irreconcilable imperial policies proved for the CoE that Russia would no longer be at the receiving end of its demands. The Ukraine invasion signals a breaking point, escalating the inter-imperial rivalry to a level where the CoE believes Russia will no longer submit itself to the European international legal order as shaped by the Western European founders of the Organization.

Global value chains (GVCs) function as a distributive arrangement at a global scale, generating and relocating wealth while often exacerbating inequalities across and within countries. The recent rise in GVC-related regulation must hence also be assessed in its distributive implications. Human rights due diligence, the current heart of the playbook of GVC regulation, largely refrains from challenging lead firms’ business models, pricing strategies, and sourcing practices. Given thick evidence that sourcing squeeze translates into vulnerabilities on the ground that are conducive to rights violations, this lacuna significantly limits the potential of human rights due diligence to address wrongful conduct deeply entrenched in economic inequality, such as modern slavery. This article argues that human rights due diligence is marked by a ‘distributional self-restraint’, i.e., a self-inflicted reluctance to engage with deeper underpinnings or root causes of human rights violations. This self-restraint has a pedigree in the intellectual history of the United Nations Guiding Principles on Business and Human Rights (UNGP) and of human rights more broadly, as well as in the naturalizing narrative from neo-classical economics around ‘free markets’ and price formation that have immunized prices in value chains from being seen as conducive to harm. It also manifests itself in the legislative texts and debates around the EU Corporate Sustainability Due Diligence Directive. To overcome such limitations, this article develops the notion of a reflexive governance of pricing and sourcing practices that requires companies to assess and reflect, with stakeholders at different tiers, the impact of lead firm pricing down the chain, especially on living wages and incomes.

Population growth was a pivotal issue in the United Nations during its first decades. The global population was growing steeply, and most of this growth took place in the formerly colonized states. Population trends were framed as an aspect of development and became object of extensive international activities, outside the UN and within. The paper explores the population discourse of those years with a focus on the UN and on the relationship with international law. It traces, firstly, the UN documents engaging directly with population growth and aiming to influence national population policies. Secondly, the paper suggests that the framing of population growth as problem of development stressed its causal role for poverty and food insecurity. The struggles for a New International Economic Order coincided with the international focus on population growth, partly with competing interpretations of reasons for global economic inequality. Thirdly, the paper suggests that the activities within the UN played a central role in shaping the discourse. While the activities of governments and private organizations were significant, it was through the authority of the UN that the development-population-nexus achieved such dominance.

The basic facts and law relating to the Gaza Marine offshore gas resources located in two fields in Gaza’s exclusive economic zone are clear cut. Gaza, its land and sea, forms part of Palestine, a state party to the UN Convention on the Law of the Sea (UNCLOS). Under UNCLOS, the State of Palestine possesses all sovereign prerogatives, including title over, and exploration of, Gaza Marine, on the same footing as any other state party. Palestine can claim and delimit the maritime zones off Gaza, which it did pursuant to its accession to UNCLOS. Accordingly, Palestine can grant contracts to any state or company to explore Gaza’s gas fields. Preventing Palestine from exercising its sovereign maritime rights and exploiting its resources is due to a succession of unlawful Israeli policies dating to the beginning of the occupation in 1967, which have kept Gaza undeveloped, followed by a complete Israeli blockade imposed since 2007, including on Gaza’s air, land, and sea. These continuing wrongful acts, in turn, triggers the state responsibility of Israel towards Palestine as an injured state, with its attendant legal consequences. Thus, Israel must cease its wrongful acts by lifting the Gaza blockade, removing the unlawful restrictions on Palestine’s usage of its maritime zones and its access to, and use of, natural resources. Israel must also compensate Palestine for the losses sustained from denying the exploration of its natural gas.

The use of informal instruments in international governance has raised concerns about their legal status, including questioning whether they should be approved by domestic parliaments. These concerns are often dismissed by reference to the legal non-bindingness and claimed harmlessness of the instruments. Yet informal instruments have various effects in society as legal and political communications. These effects emphasize the need to address the democratic deficit of informal instruments resulting from their isolation from the parliaments and the undemocratic nature of international decision-making. This article proposes a twofold approach to address this deficit. At the domestic level, better engagement of parliamentarians through deliberative ‘feedback loops’ established between the parliament and the government should be sought, complemented by parliamentary approval of important informal instruments. At the international level, so-called ‘culture of deliberativism’, that is, a turn to deliberation by embracing deliberative democratic standards for better representation of public opinions, is proposed to induce democratic sensibility into international decision-making and its products. The legal status and potential bindingness should not be the focus of public debate on informal instruments; their subtle effects and undemocratic origin are the real ‘phantom menace’ in need of addressing.

While international investment law (IIL) and business and human rights (BHR) could have been one legal domain, they are today seen as distinct legal worlds. States’ National Action Plans (NAPs) on BHR, aimed at prescribing policies to realize the UN Guiding Principles, are one of the many places where this phenomenon can be observed. Embracing a Law and Political Economy (LPE) perspective, this article contributes to the existing literature by enhancing the understanding of how NAPs on BHR currently engage with the intersection between BHR and the international investment regime. This article is the first to offer an analysis of the integration of BHR with the IIL in all publicly available NAPs, through the lenses of Fineman’s ‘vulnerability theory’, which we relate to LPE. Our analysis shows that NAPs, while not binding, can in principle be mobilized for change. Yet, despite their relevance and potential, we have also shown that, in their current forms, these instruments tend to replicate the BHR/IIL separation. As such, they perpetuate existing power dynamics that favour foreign investors over other actors negatively impacted by foreign investments. The analysis also demonstrates that the limited recognition of the interplay between foreign investment and human rights in separate NAPs, coupled with restricted inclusiveness of affected stakeholders and states’ readiness to adapt their legal and policy frameworks, significantly hampers the ability of NAPs to foster the resilience of individuals adversely affected by foreign investment.

Amidst initiatives and international agreements that call for a stronger consideration of sustainable development in international investment law, there is a need to assess whether the concept has found its way in decisions rendered by investment arbitration tribunals. References to the concept of sustainable development in investment arbitration can eventually make the adjudication of investment disputes more consistent with an increasingly important aspect of the context in which the terms of international investment agreements are embedded. Have arbitration tribunals acknowledged the relevance of the concept of sustainable development when adjudicating international investment disputes? To answer this question, this article adopts an exploratory research design and relies on a content analysis of 91 decisions that include at least one reference to the term ‘sustainable development’. It argues that the use of sustainable development by tribunals is both marginal and problematic, thus showing a strong disconnect from efforts deployed in investment policymaking and international adjudication. The article proceeds in three steps. First, it focuses on international initiatives encouraging the consideration of sustainable development in investment policymaking. Second, it briefly explores the reliance on sustainable development that has emerged in international adjudication, outside investment arbitration. Third, by analysing express references to sustainable development in international investment arbitration, it shows that these decisions demonstrate a general lack of engagement with the concept in the tribunals’ findings and a failure to fully acknowledge its integrative nature.

This article compares China’s stance during the UNCLOS negotiations – the starting point of contemporary law of the sea, with its engagement in the latest development of negotiations on the United Nations agreement on biodiversity beyond national jurisdiction (BBNJ). It answers the question, how does China participate in these two important rules-making processes of the international law of the sea? By identifying salient positions China took in each set of lengthy negotiations and explaining the reasons behind, the article also aims to reflect what a rising China may bring to the international legal maritime order in the foreseeable future. The first part of this article, on the nature of China’s engagement in the UNCLOS negotiations, draws on archival study of official records of the UNCLOS III (1973–1982), as has been digitalized by the UN Office of Legal Affairs. The second part examines the period between the adoption of the UNCLOS (1982) and the start of the BBNJ process (2004), paying attention to China’s shifting practice towards the exploration and exploitation of the deep seabed mineral resources, and its concerns over the ratification of the UNCLOS and the 1995 FSA. Then the article focuses on China in the BBNJ negotiations – Working Groups, Preparatory Committee Meetings and Intergovernmental Conferences. Drawing upon the evolution of China’s positions over the past five decades, the article concludes with some insights on the likely future directions and implications of China’s engagement with the international law of the sea.